Kusserow on Compliance: OIG reports on background checking by home health agencies

In response to a congressional request, the HHS Office of Inspector General (OIG) conducted a review to analyze the extent to which Home Health Agencies (HHAs) employed individuals with criminal convictions and to explore whether these convictions should have—according to State requirements—disqualified them from HHA employment. HHAs provide care—usually unsupervised—to patients in their homes and ensuring that their employees undergo a minimum level of screening would help protect the safety of Medicare beneficiaries. Home health programs have been a high priority for Medicare; Medicaid is intended to provide an alternative to institutional care for people with severe disabilities and it is intended that the needed services be delivered in a beneficiary’s home. This industry sector accounts for more than $20 billion paid by Medicare on behalf of 3.4 million beneficiaries with another estimated $15 billion in outlays paid by Medicaid programs.

This is a sensitive issue area as no one wants someone with a violent criminal history or one of committing thefts to be sent to care for beneficiaries in their home. To underscore, government concern with HHAs, including those concerns expressed by the Department of Justice (DOJ) and OIG, have found considerable evidence to recognize that home health is among the most vulnerable healthcare programs to fraud and abuse. The Government Accountability Office (GAO) recently reported 40 percent of all fraud convictions initiated by a group of Medicaid fraud-control units were for home health. CMS has been active in curbing problems in this arena by making uses of authority under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) to use temporary enrollment moratoria on home health providers in geographic areas of disproportionate crimes.

In their new report, the OIG noted that there are no federal laws or regulations that require HHAs to conduct background checks prior to hiring individuals or to periodically conduct background checks after individuals have been hired. State requirements for background checks vary as to what sources of information must be checked, which job positions require background checks, and what types of convictions prohibit employment. Though not stated in the report, what should be noted is that the background sanction-screening against the OIG’s List of Excluded Individuals/Entities (LEIE) is necessary and mandated in most states, along with screening State Medicaid sanction databases. However the problem is that most local criminal convictions are not related to violations of Medicare and Medicaid laws or regulation; and therefore not included in state reporting to the OIG LEIE.

In conducting the review, the OIG obtained a sample of Medicare-certified HHAs regarding all individuals they employed. It compared employee data with criminal history records to identify individuals with criminal convictions who were employed by the sampled HHAs. It also selected six employees for an in-depth review who had convictions for crimes against persons in the last five years and/or were registered sex offenders. Finally, it evaluated whether compliance with state laws would have led to disqualification of these six employees.

Approximately half also conducted periodic checks after the date of hire.

Four percent of HHA employees had at least one criminal conviction that may or may not have disqualified them from employment.

Criminal history records reviewed were not detailed enough to enable a definitive determination of whether employees with criminal convictions should have been disqualified from HHA employment.

In-depth review of the six employees found that three had convictions for crimes against persons that would disqualify them from employment in HHAs, with the remaining three with convictions did not disqualify them from employment in their respective states.

Recommendation

CMS should promote minimum standards in background check procedures for HHA employee background checks by encouraging more states to participate in the National Background Check Program. CMS concurred with this recommendation.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.